My thoughts on defense.

01/31/2017

The Immigration EO.

A liberal friend on Facebook was decrying the right wing, and it occurred to me that some of her liberal friends might like to know why conservatives think the way we do, and as an example, I offered this regarding the recent controversial executive order on immigration.

Let’s talk about Trumps recent executive order halting visas from 7 majority Muslim nations. First, does the US have an absolute right to control its own borders, and determine who, if anyone, may gain entry? Per common law, predating even our founding, that is not just a given, but a sine qua non, a definitional characteristic of a nation state.

Our Constitution has placed the power over immigration wholly into the hands of the Congress. Congress in turn has passed laws detailing such. Much of what they passed was legislation that left the actual decision making process in the hands of the President, so as to address changing priorities in a more timely manner.

So far, so good. Congress clearly has constitutional authority to pass immigration law. And delegating the specifics of the execution of that law to the Executive in Chief is also constitutional. In this case, the the relevant statute grants authority to the President to exclude persons or classes of persons deemed by the President, in his sole judgment, to be national security risks from entry into the US. And judicial precedent has long held that the right to refuse entry is pretty much absolute.

Of those 7 nations listed in the EO, six are failed states where it is effectively impossible to truly determine whether visa applicants are who they indeed say they are, or if they are or are not radicalized threats. The seventh nation has as its de facto national motto “Death to America.” Instituting a pause to review our vetting procedures in these cases is well within the scope of the statute the EO references as its authority to implement the pause.

Note, to this point, I’ve been discussing whether or not Trump’s EO is constitutional and lawful. In my opinion, it is. Whether or not is is a good policy is another question. I tend to think it is, with some reservations. As to whether legal permanent residents (Green Card holders) can or should be subject to it is a bit more beyond my understanding. I’m not well informed on the jurisprudence on the matter. My understanding is that there is a tension in current law between “LPRs are different” and “still aliens, still can be denied.”

And springing it on a Friday night was probably pretty politically stupid. But stupid doesn’t amount to unconstitutional or illegal. And let’s not forget, for a large swath of the population who consider immigration an important political issue, and who feel their concerns have been ignored or ridiculed by both parties for three decades, any action is going to be something they will celebrate. You can say they are backwards, or they are mistaken, or they lack compassion. Maybe, maybe not. What they don’t lack is numbers, and they were a large part of how Donald Trump wound up in the Oval Office.

Let’s move on to the so-called Monday Night Massacre of Acting Attorney General Sally Yates. Lawyers for some aliens denied entry (or held for additional screening) obtained preliminary injunctions against the EO in some very limited cases. Fair enough. That’s what courts are for.* Acting AG Yates, a holdover from the Obama administration who was asked to stay on until the next AG is confirmed, issued an order to the DoJ to not defend the EO in the courts. Here’s the problem with that. She did not make an argument that the EO is unconstitutional, or that no good faith defense of its legality could be mounted. If she believed that to be the case, she should have resigned. The AG, acting or otherwise, is the head of the Department of Justice. And the department heads of all executive departments only enjoys authority as derived from the executive authority held solely by the President. There is no inherent authority in the office Ms. Yates held. Not only was President Trump well within his authority to dismiss her, he was practically obligated to do so.

As to the supposed hypocrisy of the Right suddenly celebrating EOs after condemning them for 8 years of the Obama administration, well, here’s the thing. It’s not the fact that EOs were issued. It’s that so often the EOs issued by the Obama administration clearly went beyond the authority delegated by the underlying authorizing statute passed by Congress. President Obama’s EOs had a terrible track record in federal courts, with more unanimous rulings by the Supreme Court against his policies than any other president.

So, from where I sit, I do not see the Constitution being trampled by an out of control executive. I see a president who is implementing policies that he promised, within the authority delegated to him by law. Again, whether those policies are wise or unwise, is, and forever will, be a matter of perspective.

*Though I could make a case that as the aliens have not been granted entry into the US (that is, until you clear immigration, you technically are not under the jurisdiction of the United States), they have no standing to sue in US courts.

Comments

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In listening to my friend who does immigration railing on Facebook, there is a higher level of required due process for green card holders. An executive order could deny or revoke visas, but a lawful permanent resident has to be entitled to some sort of a hearing.

Well said, my issue is that I have "shaved" off many liberal friends since embracing my inner conservatism. They are now acquaintances. It's been quite a process. I have told these acquaintances about the election "...Trump wasn't my main choice and I'm as surprised as you that he won, I just don't carry the disappointment you do."

The controlling legal authority resides in 8USC Section 1182. the document can be found at the Government printing office web site.

As I read the law, The President can bar the entry of any alien or class of aliens (I believe this implies the it don't matter if there is a preexisting entry visa or resident alien permit.)if it is in the national interest. There is wide latitude in the law.

Please I am NOT a lawyer, nor do I play one on TV. Just a retired BDT (broke dick tanker)

Eric is correct. The power of the President and the Secretary of State under Title 8 is rather broad. And it falls squarely in the purview of the Executive. Specifically, for the President, 8 USC Section 1182 (f). Makes interesting reading.

My biggest issue is that the whole thing seemed a bit rushed and not fully thought out.

The guys at the 'front line' at the airports etc didn't have a proper set of guidelines for all the likely scenarios. They had to improvise and there were inconsistencies across the board. Stuff like green card holders, dual-nationality holders, and so on.

*Cue a bunch of mess and a world-wide political shit storm*

It's fine to have an idea that you think is great, but if you don't implement it well then both you and your idea start to look bad.

It highlights that none of Trumps core team have any experience in government and just don't understand how these things work. Add to that their near pathological distrust of anyone in public service, then it situation can only get worse as the administration is either not getting, or not listening, to any advice from those who have a better understanding of the machinery of government and who might have saved them from some embarrassment.

Hopefully they'll settle into things and make less 'own goal' errors like this. Being a CEO is not the same as being President!